Scott v. Commonwealth

1

MARY HALEY SCOTT v. COMMONWEALTH OF VIRGINIA

No. 0534-21-3

Court of Appeals of Virginia

March 29, 2022

FROM THE CIRCUIT COURT OF SMYTH COUNTY Deanis L. Simmons, Judge

(Paul R. Cassell; Cassell & Crewe, PC, on brief), for appellant. Appellant submitting on brief.

(Mark R. Herring, ^[1] Attorney General; Sharon M. Carr Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Present: Judges Humphreys, O'Brien and Raphael

MEMORANDUM OPINION ^[*]

STUART A. RAPHAEL JUDGE

Appealing her conviction for grand larceny, Mary Haley Scott claims that she did not intend to permanently deprive the victim of his property because she gave it back, more than a year later, while awaiting trial. She also claims that the evidence failed to prove that the property was worth more than $500. And she claims that the trial court erred by not allowing the victim to be questioned about his pawnshop records. Finding the evidence sufficient for a reasonable trier of fact to find her guilty beyond a reasonable doubt we affirm.

Background^[2]

In the spring of 2018, Scott opened a thrift store-Joselena's-with help from veteran-pawnshop-owner James Adams. Scott borrowed "a substantial amount of money" from Adams to start the business. She agreed to sell items on consignment for Adams in exchange for twenty percent of the proceeds. The property belonging to Adams included seventy-two silver rings of various styles and sizes.

Adams and Scott also opened an ice-cream shop together in a small building on the same property, each owning half the business. ^[3] Adams paid ninety-nine percent of the start-up costs, funded the joint-checking account, and bought the food, equipment and supplies.

Adams and Scott leased a large storage unit for overflow inventory. Scott signed the lease, but Adams paid the rent. To keep track of their respective property, they stored their items on different sides of the storage unit. Scott agreed to use Adams's items to replenish the merchandise as inventory was sold.

Adams asked Scott several times to return his seventy-two silver rings. She offered various excuses for not having them accessible but said she would "get" them to him.

At one point, Scott asked to borrow Adams's storage-unit key claiming that she had misplaced hers. After Adams turned over the key, however, Scott failed to return it. At that point, Adams owned about two-thirds of the items in the storage unit.

Several months later, when Adams was out-of-town on vacation, Scott emptied the thrift store, ice-cream shop, and storage unit. She left only a heavy woodworking machine and a few landscaping tools.

Upon his return, Adams drove to the ice-cream store looking for Scott. He discovered Scott's husband in the parking lot, removing the rest of the merchandise from the store. When Scott arrived, Adams asked her, "[W]here is the stuff out of Joselena's?" Scott replied, "[Y]our shelf time's up, you have nothing."

In December 2019, after Scott was indicted for grand larceny, she disappeared. Her friends reported her as missing and suggested that she had drowned in a lake, leading to a search in Virginia and West Virginia. Scott was ultimately found and arrested in West Virginia. She waived extradition and was returned to Virginia to stand trial. In the summer of 2020-more than a year after failing to return Adams's property-Scott delivered the rings to the sheriff to be delivered to Adams.

At Scott's bench trial in January 2021, Adams described the property he had consigned to Scott, including the seventy-two silver rings. His handwritten inventory and opinion about the value of the merchandise were received into evidence without objection. Scott's counsel sought to question Adams about complying with a record-keeping statute applicable to the transfer of items from the pawnshop to the thrift store. The Commonwealth objected, asserting that the recordkeeping statute had "nothing to do with this case." The court sustained the objection but told Scott she would have "leeway" in questioning Adams. Scott's counsel proffered that he would have asked Adams "questions related to the requirements of Code § 54.1-4009," which sets forth rules for "records that are required to be kept with regard to a pawn broker with regard to merchandise that is purchased for resale."

Testifying in her defense, Scott claimed that Adams "didn't consign anything" to her, "except for the rings" and a couple other items. She also denied fleeing from Virginia, claiming that she "didn't know about an indictment" when she left. On cross-examination, she first denied but then admitted to having been convicted of a crime involving lying-she was convicted in 2013 of giving false information to a police officer.

After denying Scott's renewed motion to strike at the close of the evidence, the trial court-"having weighed and assessed" the evidence "and the credibility of the witnesses"- found Scott guilty of grand larceny. The court sentenced her to a ten-year prison term (which the court suspended), two years of supervised probation, $3, 790 in restitution, and a $1, 000 fine.

Standard of Review

"When presented with a sufficiency challenge in criminal cases, we review the evidence in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Commonwealth v. Cady, 300 Va. 325, 329 (2021). "Viewing the record through this evidentiary prism requires us to 'discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.'" Id. (quoting Commonwealth v. Perkins, 295 Va. 323, 323-24 (2018)). The conviction must stand "unless it is plainly wrong or without evidence to support it." Sarka v. Commonwealth, 73 Va.App. 56, 62 (2021) (quoting Austin v. Commonwealth, 60 Va.App. 60, 65 (2012)).

A deferential standard applies to the trial court's evidentiary rulings. "The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." Warnick v. Commonwealth, 72 Va.App. 251, 263 (2020) (quoting Amonett v. Commonwealth, 70 Va.App. 1, 9 (2019)). "An appellate court reviews a decision to admit or exclude evidence where no federal constitutional issue was raised under the standard for non-constitutional harmless error provided in Code § 8.01-678." Haas v. Commonwealth, 299 Va. 465, 467 (2021).

Analysis

While the Commonwealth argues that Scott received many items of property from Adams, Scott's concession that Adams consigned the seventy-two silver rings to her for sale at the thrift store is enough to resolve this appeal. So we limit our discussion to the rings.

A. The evidence sufficed to show that Scott intended to permanently deprive Adams of the rings.

Larceny is "the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently." Creamer v. Commonwealth, 64 Va.App. 185, 205 (2015) (quoting Carter v Commonwealth, 280 Va. 100, 104-05 (2010)). "Intent, like any element of a crime, may be proved by circumstantial evidence as long as that evidence excludes all reasonable hypotheses of innocence flowing from it." Id. "Circumstantial evidence of intent may include a person's statements and conduct, including those 'after the events that constitute the charged crime.'" Id. (quoting Simon v. Commonwealth, 58 Va.App. 194, 206 (2011)).

Both parties agree that Scott came into possession of the rings through a bailment. "A bailment has been broadly defined as 'the rightful possession of goods by one who is not the owner.'" Aufforth v. Aufforth, 72 Va.App. 617, 626 (2020) (quoting K-B Corp. v. Gallagher, 218 Va. 381, 384 (1977)). "[I]t is the element of lawful possession, however created, and duty to account for the thing as the property of another that creates the bailment, regardless of whether or not such possession is based on contract in the ordinary sense." Id. (quoting K-B Corp., 218 Va. at 384). "To have lawful possession, an alleged bailee 'must have both physical control over the property and an intent to exercise that control.'" Id. (quoting Morris v. Hamilton, 225 Va. 372, 374-75 (1983)).

Scott argues that the evidence failed to prove that she intended to permanently deprive Adams of the rings because they had no agreement about when the rings would be returned-or on what conditions-and because she eventually returned them. We disagree.

Although Scott at first testified that she had no agreement about what to do with the rings, she admitted on cross-examination that Adams gave her the rings to sell. She also displayed the rings at her store, showing her intent to sell them for Adams under their consignment agreement, for which Adams would receive eighty percent of the proceeds. Those facts evidence a bailment. The lack of an oral or written contract does not vitiate the bailment because "it is not necessary to have a formal contract or even an actual meeting of the minds." Maiska v. Commonwealth, 63 Va.App. 330, 339 n.3 (2014) (citing Morris, 225 Va. at 374).

A reasonable factfinder could conclude from the totality of circumstances that Scott's failure to deliver the rings to Adams, once he asked for them back, showed her intent to permanently deprive Adams of possession. When Adams asked Scott to return the rings, her authority to keep them was revoked. E.g., 8A Am. Jur. 2d Bailments § 200 (2022) ("[T]he time for a termination of the bailment may be indicated at any moment by the bailor provided this is done before the object of the bailment has been...